Township attorney: deed restrictions can back density bonuses but enforcement is difficult

Trustees pressed township attorney Mike Homier for practical enforcement options for owner-occupancy conditions that staff had proposed as part of bonus-density incentives.

Homier said the most direct method is a deed restriction recorded as a condition of approval that runs with the land and can be enforced in court by the township. "It would be a deed restriction that the township could then enforce by way of judicial means," Homier said (Mike Homier, legal counsel, 00:15:06).

He cautioned that recorded restrictions are easier to enforce than voluntary promises, but they remain difficult in practice. "The hard part is not the deed restriction. It is, again, let's say they violate it... Are we going to kick people out of their homes? Because that's really the net effect of that enforcement," he said, noting that remedies often focus on future leasing and developer obligations rather than eviction of existing occupants.

Trustees discussed supplemental approaches Homier identified: (1) a permit or licensing program for rental units that triggers enforcement penalties or loss of permissions, (2) conditioning approval on deed restrictions together with periodic compliance reviews, and (3) attaching time-limited owner-occupancy windows (for example, five or ten years) to approvals. Homier said these are legally available but stressed administrative complexity and enforcement costs.

Staff and trustees agreed to carry those options forward for drafting: deed-restriction language as a clear condition of approval for bonus density, and a complementary permitting or registration mechanism that could be used to track compliance rather than rely only on litigation. No new enforcement program was adopted at the meeting.